Senior Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas recently weighed in on the issue of the proper parameters for a neuropsychological IME in the case of Dellavalle v. USAA, No. 2017-CV-4668 (C.P. Lacka. Co. May 14, 2019 Minora, J.).
This case involved UIM claim(s) arising out of a motor vehicle accident.
The issue came before the court by way of a motion to compel filed by the defense. The defense desired to complete a neuropsychological examination of the Plaintiff with a doctor in Allentown. The Plaintiff objected to the distance required to travel to the exam and also objected to the requested length of the deposition.
There were also disputes between the parties as to whether the examination could be videotaped, to what extent the Plaintiff’s attorney or a representative of the Plaintiff could be present during the exam or testing, and whether the Plaintiff was entitled to secure any raw data generated by the defense expert during the exam.
|Judge Carmen D. Minora
In addressing the issues before him, Judge Minora noted that Pa.R.C.P. 4010 allows for examination if good cause is shown and that Pa.R.C.P. 4011 grants the court discretion to avoid any discovery that causes unreasonable annoyance, embarrassment, oppression, burden, or expense to a person or a party.
In terms of the location of the expert, the court noted that it hesitated to infringe upon the right of any party to try the case they choose, including with respect to the selection of an expert. As such, the court rejected the Plaintiff’s objection to the location of the expert but ruled that the defense would have to bear any expenses related to the travel required for the Plaintiff to attend the exam.
As for the duration of the neuropsychological IME, the court limited the exam and testing to six hours over two days. In this regard, the court noted that it was balancing the defense’s right to the examination against the Plaintiff’s right to be protected from unreasonably burdensome discovery.
With regards to presence of Plaintiff’s counsel or a representative of the Plaintiff at the examination, the court noted that there was no binding appellate court precedent on the issue. Judge Minora reviewed prior trial court opinions on the issue. In the end, the court ruled that the Plaintiff could have a representative present only for the interview portion of the neuropsychological examination. The court further ruled that a representative of the Plaintiff would not be allowed in the room during the standardized testing portion of the exam.
Judge Minora additionally ruled that no part of the examination by the doctor and/or the standardized testing could be videotaped. However, he did allow for videotaping of the interview portion of the exam, i.e., the part at which the Plaintiff’s representative was allowed to be present.
The court also ruled that the Plaintiff was to be provided with any raw data generated during the examination. The court’s Order also required that all examination and testing materials were to be returned to the Plaintiff upon the conclusion of the case.
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I send thanks to Attorney Bruce Zero, Esq. of the Scranton, PA office of Powell Law for bringing this decision to my attention.
For other Tort Talk entries on this issue, check out the Label of “Neuropsychological Review” way down on the right hand column of the Tort Talk blog at www.TortTalk.com.